LONDON UNDERGROUND LTD v MR D E HARRIS [2002] UKEAT 752_00_1103

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 752_00_1103

Case No Appeal No. EAT/752/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

LONDON UNDERGROUND LTDAPPELLANT

MR D E HARRISRESPONDENT

Before

MR COMMISSIONER HOWELL QC

MR P R A JACQUES CBE

MR T C THOMAS CBE

Date 11 March 2002

[1]APPEARANCES For the Appellant MR T KEMPSTER (of Counsel) Instructed By: Secretary and Solicitor London Underground Ltd 55 Broadway St James' Park London SW1H 0BD For the Respondent MISS M MURPHY (of Counsel) Instructed By: Messrs Batra Solicitors Kingsland House 122-124 Regent Street London W1R 5FE MR COMMISSIONER HOWELL QC: In this appeal London Underground Ltd, the Respondents to the proceedings below, seek to have set aside as erroneous in law the decision of the London (North) Employment Tribunal embodied in Extended Reasons sent to the parties on 19 April 2000, holding that they had discriminated on racial grounds against one of their employees, Mr Delroy Elliston Harris, by dismissing him for disciplinary offences following a hearing on 17 August 1999.

[2]At the time of his dismissal Mr Harris, who is of Jamaican origin, had 29 years of unblemished service on the Underground and the reason the Tribunal found him to have been discriminated against was that although they found as a fact that he was guilty of the two disciplinary offences, they considered the penalty of dismissal too harsh. In fact, Mr Harris' dismissal was revoked on 6 September 1999 at an internal appeal procedure which substituted a down-grading from Ticket Inspector, his post at the time of the offences, to Station Assistant, the position he continues to occupy. The tribunal determined that this reduction in grade was the correct penalty that should have been awarded in the first place, and on that basis awarded him £2,000 compensation for the imposition of the original more severe penalty which they found discriminatory. The issue for us is whether the Tribunal's finding, or inference, that the original more severe penalty had been imposed on racial grounds is supported and explained by adequate findings of primary fact in the tribunal's decision and stated reasons.

[3]We have been considerably assisted on the full hearing of this appeal not only by the succinct and helpful arguments of Mr Kempster for the Appellant and Miss Murphy for the Respondent, but also by the very clear judgment of His Honour Judge Peter Clark at the preliminary hearing identifying the material factors and questions for us to consider. As recorded there and in the tribunal's statement of extended reasons, this whole case resulted from a row that blew up between Mr Harris and his supervisor, a Mr Smith, after Mr Harris had been subjected to racial abuse by a passenger when on duty as a Ticket Inspector at Holborn Underground Station in the morning rush hour of 10 July 1999.

[4]Mr Harris, who was on duty in the inter-change area between the Piccadilly and Central lines at the station, asked the passenger, a Mr Jackson, to produce his ticket, as he was entitled to do. Mr Jackson initially refused and racially abused Mr Harris when he insisted. Finally the ticket was produced, and Mr Harris then purported to confiscate it and sought to have Mr Jackson ejected from the station on the ground of his abusive behaviour. At the exit, Mr Smith was called when Mr Harris refused to return the passenger's ticket to him. Mr Smith insisted that the ticket had to be returned after Mr Jackson's name and address had been taken.

[5]According to the tribunal's findings, this was the correct procedure. The right thing for Mr Harris to have done in the circumstances was ask the passenger to leave the station and report him for prosecution for his behaviour, but there was no authority to confiscate and retain his ticket, and Mr Harris had been mistaken in thinking there was. Mr Harris however took the view that Mr Smith was siding with Mr Jackson because both of them were white, and an altercation developed with Mr Harris behaving aggressively towards the supervisor.

[6]Subsequently it was decided that Mr Harris should go home for the day, and he went into the office to sign off. Five days later, on 15 July 1999, he lodged a formal grievance against Mr Smith accusing him of condoning Mr Jackson's racist comments by returning his ticket, and also separately of making direct racist comments of his own against Mr Harris when he went to the office to sign off. Those complaints were properly investigated by one of the Respondent's managers and found unjustified. In particular, his conclusions, both concurred in by the tribunal in their own factual findings, were first that Mr Smith's conduct over the ticket had been correct and it was Mr Harris who had acted in an aggressive and threatening manner following the incident, and secondly and more seriously, that Mr Harris' subsequent allegations of separate racial abuse by Mr Smith in the office were untrue and the complaint he had made about this was false.

[7]Following that, Mr Harris was disciplined on two charges of gross misconduct in that he(1) behaved aggressively towards Mr Smith and

(2) raised a false and malicious grievance against him. A disciplinary panel was convened and took place on 17 August 1999, when the Applicant was represented by his trade union advocate. Having considered the evidence, the panel found both charges proved. Although the first one alone would have been unlikely to have led to Mr Harris' dismissal given his long service and the mitigating circumstances of the immediate events of 10 July 1999, taking this with what they found to be the submission of a false grievance five days later they decided that dismissal was the correct penalty.

[8]As we have already noted, that penalty was later withdrawn on an internal appeal by another manager on a review of the evidence on 6 September 1999. His decision was that the original penalty had been too harsh given the mitigating circumstances, but that there was no justification for Mr Harris having submitted a false grievance. As this had resulted in a significant breach of trust and trust was important to his job as a Revenue Control Inspector, he should be reduced in grade and continue to be employed instead as a Station Assistant.

[9]On those facts, the Employment Tribunal held that London Underground Ltd had been guilty of unlawful discrimination on racial grounds against Mr Harris in the original dismissal imposed. The basis for that conclusion was expressed very shortly in paragraph 16 of the tribunal's extended reasons as follows:

"The Tribunal found that the First Respondent had fairly investigated the incident on 10 July 1999 between the Applicant and Mr Smith and there was clearly no basis to discipline Mr Smith. However the Tribunal agreed with the conclusion of [the manager who conducted the appeal] that the Applicant whilst clearly guilty of both offences had been treated too harshly by the First Respondent and should not have been dismissed. The correct penalty was a reduction in grade. The Tribunal was of the unanimous opinion that being dismissed in these circumstances was a difference in treatment and that it was more probable than not that the First Respondent had treated the Applicant less favourably than it would have treated others and that the difference in treatment was on racial grounds."

On that basis they awarded him compensation of £2,000 for the injury to his feelings from that dismissal.

[10]It was common ground before us that in the earlier part of their extended reasons the tribunal had directed themselves in entirely correct terms as to the principles of law to be applied in determining questions of racial discrimination, by reference in particular to the guidance given by Neill LJ in King v Great Britain China Centre

[1991] IRLR 513

, approved by the House of Lords in Zafar v Glasgow City Council

[1996] IRLR 36

[11]As already pointed out in his Honour Judge Peter Clark's judgment on the preliminary hearing, it is well established on authority that for an Employment Tribunal properly to draw an inference of less favourable treatment on racial grounds, there must first be sufficient findings of primary fact on which to base that conclusion. The issue for us to determine is whether the tribunal's decision, and in particular the passage we have quoted, adequately identifies the relevant primary facts and the basis of reasoning which led the tribunal to the conclusion that the action of the disciplinary panel in dismissing Mr Harris on 17 August 1999 had been based on racial grounds.

[12]On behalf of London Underground Mr Kempster argued by reference to Zafar and Martins v Marks & Spencer Plc

[1998] IRLR 326

that the mere fact that an employer may have acted harshly or unreasonably against an individual employee is not, of itself, any ground for an inference of discrimination on a racial basis, in the absence of any sustainable finding that another employee in the same circumstances would have been treated any differently. The tribunal's extended reasons did not demonstrate that they had even addressed that essential question and they seemed instead simply to have jumped from their agreement with the second manager's view that the original penalty of dismissal had been too harsh to the assumption that the first disciplinary panel had imposed it on racially discriminatory grounds.

[13]Miss Murphy on the other hand said on behalf of Mr Harris that as the tribunal had correctly directed themselves in paragraph 5 of their extended reasons to the right principles of law and to what they should be looking for in relation to the facts of the case, it was wrong to infer against them that when they actually came to assess the evidence later in their decision they had overlooked all that. Viewed in that light, she submitted that it should be taken as implicit in the passage in paragraph 16 of the extended reasons that the tribunal were finding Mr Harris to have been detrimentally treated by the imposition of the dismissal, and that in the context of this and the general references to the racial abuse suffered by Mr Harris at the time of the original incident, it was also implicit that the Employment Tribunal had been looking to London Underground Ltd for an explanation of the harshness of Mr Harris' original treatment and had not found any explanation that was put forward convincing. If one particular finding of primary fact had to be identified to justify the inference their conclusion must have embodied, it was in paragraph 15 of the extended reasons where the tribunal said insufficient regard had been paid by Mr Smith to the racial abuse Mr Harris had received.

[14]We have concluded that Mr Kempster's arguments are clearly to be preferred, and that this tribunal's finding of unlawful discrimination on the part of London Underground Ltd in the only way identified in paragraph 16 of its extended reasons, namely the imposition of a dismissal rather than a reduction in grade by the original disciplinary panel, cannot be allowed to stand. We would like to make clear that Mr Harris is in our view entitled to the greatest sympathy for what (on the tribunal's undisputed findings) he had to put up with from this unpleasant and aggressive passenger on the morning of 10 July 1999; and even with the milder penalty of the reduction in grade we all find it extremely sad that his previous long and excellent record of service should have been spoilt in this way, by what we have little doubt stemmed from no more than a momentary overreaction to the unpleasant treatment he received. Nevertheless, on the tribunal's undisputed findings, there having been no cross appeal, he had been guilty of making a false and unfounded allegation of racist conduct on the part of his supervisor which is a serious matter, and it has in our view to be accepted that dismissal for this, though hard, was with within the courses properly open to the disciplinary panel on 17 August 1999.

[15]We accept Mr Kempster's submission that there can be no proper ground for drawing any inference either of less favourable treatment, or of discrimination on racial grounds, from the mere fact of their deciding on that penalty rather than the reduced one substituted on appeal. We agree that in their stated reasons in paragraph 16 by focusing solely on the fact that they considered the original penalty too harsh, and making that the only reason for the conclusions they went on to express, the Employment Tribunal have wrongly elided the two material questions they needed to address. First, had Mr Harris in fact suffered any difference in treatment on a proper like for like comparison? And second, what there was to justify any inference that any such difference in his case had been made on racial grounds? In fact, as recorded by the tribunal in paragraph 14 of their extended reasons, the disciplinary panel had expressly addressed the reasons why they thought it right to impose the severe penalty of dismissal because of the nature of the second offence, and also showed how they did take account of the racial abuse Mr Harris was accepted to have suffered. We think therefore the tribunal's stated conclusion in paragraph 16 is additionally at fault for failing to identify why those explanations were rejected as untruthful, or insufficient to rebut the inferences of racial motivation the tribunal thought it right to draw.

[16]For those reasons we have concluded that the appeal against the tribunal's finding of unlawful discrimination on the part of London Underground Ltd must be allowed. We have not however been persuaded by Mr Kempster that this is a case in which it would be right to substitute our own decision based on the tribunal's existing findings, since a principal reason for allowing the appeal is that these fail adequately to identify and deal with all potentially material points. In the circumstances therefore, we set aside the tribunal's finding against London Underground Ltd and remit the case to either the same or a freshly constituted tribunal for rehearing and redetermination of all material issues on the complaint that the imposition of the penalty of dismissal following the disciplinary hearing on 17 August 1999 amounted to unlawful discrimination.